Lauren Casola v. Dexcom, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LAUREN CASOLA, an individual, No. 23-55403

Plaintiff-Appellee, D.C. No.
3:22-cv-01865-
v. JO-MDD

DEXCOM, INC.,
OPINION
Defendant-Appellant.

BRENDA BOTTIGLIER, an No. 23-55435
individual,
D.C. No.
Plaintiff-Appellee, 3:22-cv-01869-
JO-MDD
v.

DEXCOM, INC.,

Defendant-Appellant.
2 CASOLA V. DEXCOM, INC.

HELENA PFEIFER, an individual, No. 23-55437

Plaintiff-Appellee, D.C. No.
3:22-cv-01878-
v. JO-BGS

DEXCOM, INC.,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Jinsook Ohta, District Judge, Presiding

Argued and Submitted December 6, 2023
Pasadena, California

Filed April 10, 2024

Before: Consuelo M. Callahan, Ryan D. Nelson, and
Bridget S. Bade, Circuit Judges.

Opinion by Judge Callahan
3 CASOLA V. DEXCOM, INC.

SUMMARY *

Diversity Jurisdiction/Removal

The panel dismissed for lack of jurisdiction three
consolidated appeals challenging the district court’s decision
to remand each of the underlying product liability actions
back to California state court under the forum defendant rule
contained in 28 U.S.C. § 1441(b)(2), which prohibits
removal based on diversity jurisdiction “if any of the parties
in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.”
Violation of the forum defendant rule is a non-
jurisdictional defect, which is waived if a plaintiff does not
seek remand on that basis within 30 days of
removal. Dexcom, the lone defendant and a citizen of
California, removed these cases to federal court based on
diversity jurisdiction after the complaints were submitted
electronically but before they were filed by the clerk of
court. Dexcom alleged that the forum defendant rule did not
bar removal because Dexcom had not yet been “joined and
served” as a defendant as required by § 1441(b)(2).
The panel held that for purposes of removability, an
electronically submitted complaint is not “filed” in
California state court until it is processed and endorsed or
otherwise acknowledged as officially filed by the clerk of the
court. Dexcom’s removals were ineffectual attempts to
remove cases that did not yet exist as civil actions pending
in state court, and thus Dexcom’s initial notices of removal

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CASOLA V. DEXCOM, INC.

were legal nullities that did not start the 30-day remand clock
under § 1447(c). Accordingly, the district court had the
power to grant the plaintiffs’ eventual motions to remand
based on a perceived violation of the forum defendant rule,
even though the motions were brought 31 days after
Dexcom’s initial (ineffectual) notices of removal. Because
the district court had the power under § 1447(c) to order
remand based on the forum defendant rule, the panel lacked
jurisdiction under 28 U.S.C. § 1447(d) to review the remand
orders.

COUNSEL

Joshua A. Klarfeld (argued), Paul J. Cosgrove, and Georgia
Hatzis, UB Greensfelder LLP, Cleveland, Ohio; Kevin W.
Alexander, Renata O. Bloom, and Matthew Nugent, Gordon
Rees Scully Mansukhani LLP, San Diego, California; for
Defendant-Appellant.
Min J. Koo (argued), Tosi Law LLP, Atlanta, Georgia;
Timothy M. Clark, Tosi Law LLP, Carlsbad, California; for
Plaintiffs-Appellees.
5 CASOLA V. DEXCOM, INC.

OPINION

CALLAHAN, Circuit Judge:

In these three consolidated appeals, Defendant-
Appellant Dexcom, Inc. challenges the district court’s
decision to remand each of the underlying actions back to
California state court under the forum defendant rule. The
forum defendant rule, contained in 28 U.S.C. § 1441(b)(2),
prohibits removal based on diversity jurisdiction “if any of
the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.” Id. (emphasis added). Violation of the forum
defendant rule is considered a non-jurisdictional defect,
which is waived if a plaintiff does not seek remand on that
basis within 30 days of removal. Lively v. Wild Oats Mkts.,
Inc., 456 F.3d 933, 936, 942 (9th Cir. 2006); see 28 U.S.C.
§ 1447(c) (“A motion to remand the case on the basis of any
defect other than lack of subject matter jurisdiction must be
made within 30 days after the filing of the notice of removal
. . . .”).
Dexcom, the lone defendant in each of the present
actions and undisputedly a citizen of California, removed
these cases to federal court based on diversity jurisdiction.
See 28 U.S.C. § 1332(a), (c)(1). In its initial notices of
removal, Dexcom informed the district court that the forum
defendant rule did not bar removal because it had not yet
been “joined and served” as a defendant. See 28 U.S.C.
§ 1441(b)(2).
In doing so, Dexcom was trying to effect what is known
as a “snap removal”—filing its notices of removal before
service of the summons and complaint. In fact, Dexcom was
attempting an even snappier version of the typical snap
6 CASOLA V. DEXCOM, INC.

removal. Dexcom was not just attempting removal pre-
service but, as we will explain, also pre-filing of the
underlying complaints in state court. 1
Like the district court, we conclude that Dexcom’s
“super snap removals” were ineffectual. These were
attempts to remove cases that did not yet exist as civil actions
pending in state court, and thus Dexcom’s initial notices of
removal were legal nullities that did not start the 30-day
remand clock under § 1447(c). Accordingly, the district
court had the power to grant the plaintiffs’ eventual motions
to remand based on a perceived violation of the forum
defendant rule, even though the motions were brought 31
days after Dexcom’s initial (ineffectual) notices of removal.
Because the district court had the power under § 1447(c) to
order remand based on the forum defendant rule, 28 U.S.C.
§ 1447(d) requires that we dismiss these appeals for lack of
jurisdiction.
BACKGROUND
Commencement of the Actions
In late 2022, Plaintiffs-Appellees Lauren Casola, Brenda
Bottiglier, and Helena Pfeifer (collectively, “Plaintiffs”)—
proceeding separately but through the same counsel—each
brought similar product liability suits against Dexcom in the
Superior Court of California, County of San Diego
(“Superior Court”). 2 Because the present appeals turn on the

1
As explained in the final section of this opinion, the present appeals do
not offer us the chance to decide the permissibility of snap removals in
the Ninth Circuit. This opinion addresses only what we today coin
“super snap removals.”
2
A fourth plaintiff also sued Dexcom, and Dexcom’s appeal of the
remand order in that case was originally consolidated with the present
7 CASOLA V. DEXCOM, INC.

timing of various steps in the case initiation process, we lay
them out in some detail.
On Wednesday, November 23, 2022 (the day before
Thanksgiving), Casola electronically submitted her
complaint to the Superior Court. As required by that court’s
local rules, she did so through an electronic filing service
provider. See S.D. Super. Ct. Local Rule 2.1.4; Cal. Civ.
Proc. Code § 1010.6(e) (authorizing trial courts to adopt
local rules permitting electronic filing of documents).
The same day, Dexcom’s counsel received notice of the
complaint’s submission through Courthouse News Service
(“CNS”), which is “a national news organization that
publishes daily reports for its subscribers about civil
litigation, including the filing of new lawsuits.” Courthouse
News Serv. v. Planet, 947 F.3d 581, 585 (9th Cir. 2020)
(internal quotation marks omitted). The CNS notification
report listed the party names, the venue, a CNS-assigned
case number (“T22-4576”), and a “Filing Date” of
November 23, 2022, along with the names of plaintiff’s
counsel and a general summary of the claims asserted. The
report also offered options to access the complaint itself.
On Monday, November 28, 2022—before the Superior
Court had officially filed the complaint or issued a
summons—Dexcom filed a notice of removal in the United
States District Court for the Southern District of California. 3

ones. However, after briefing was completed, we granted the parties’
joint motion to dismiss that appeal because that plaintiff voluntarily
dismissed her suit in state court. Lutz v. Dexcom, Inc., No. 23-55436,
2023 WL 7491876, at *1 (9th Cir. Oct. 11, 2023).
3
Dexcom invoked the district court’s diversity jurisdiction, and it is
undisputed that 28 U.S.C. § 1332’s jurisdictional requirements were
satisfied in all three cases. Dexcom is a citizen of California and
8 CASOLA V. DEXCOM, INC.

Dexcom attached to its notice of removal a copy of Casola’s
state court complaint obtained through CNS. The
complaint’s caption displayed no filing stamp endorsement,
and the case number and judge assignment fields were blank.
The notice of removal identified the case only by its CNS-
assigned case number because, as Dexcom later advised the
district court, the Superior Court case number “was not
publicly available.”
The next day, the Clerk of the Superior Court officially
filed the complaint—endorsing it as “ELECTRONICALLY
FILED” on November 29, 2022, at 3:31 PM—and issued a
summons bearing the same endorsement. The following
day, Wednesday, November 30—two days after Dexcom’s
notice of removal—Casola served a copy of the complaint
and the summons on Dexcom through its agent. About one
week later, on December 8, 2022, Dexcom filed a
supplemental notice of removal in the district court,
providing the official case number assigned by the Superior
Court and attaching the endorsed version of the complaint. 4
Motions to Remand
Dexcom’s original notices of removal were filed in the
district court on November 28, 2022. On December 29,
2022, Plaintiffs responded with substantively identical
motions to remand their respective actions to state court.
Importantly, Plaintiffs’ remand motions came 31 days after

Delaware, while Casola, Bottiglier, and Pfeifer are, respectively, citizens
of Georgia, Louisiana, and New Jersey. And Plaintiffs have not disputed
that the amount in controversy in each case exceeds § 1332’s monetary
threshold.
4
Bottiglier’s and Pfeifer’s cases followed the same procedural
chronology as Casola’s, with some differences in exact dates which do
not impact our analysis and are therefore omitted.
9 CASOLA V. DEXCOM, INC.

the filing of Dexcom’s initial notices of removal—cause for
concern given § 1447(c)’s command that a motion to remand
“on the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of
[a] notice of removal.” Potentially realizing this timing
predicament, Plaintiffs framed their remand motions as
based on lack of “subject matter jurisdiction”—a defect
which would warrant remand at any time before final
judgment. See id. Plaintiffs argued that the district court
lacked subject matter jurisdiction because Dexcom’s notices
of removal were “legally void” for having been filed before
the Superior Court had processed the complaints. Plaintiffs
also asserted that the forum defendant rule precluded
Dexcom from removing the cases now that it had been joined
and served as a defendant in each of the actions.
In January 2023, with these remand motions pending, the
district court issued an order to show cause in each case. The
court ordered Dexcom, “a California citizen, to show cause
why the case[s] should not be remanded to state court
pursuant to the forum defendant rule.” As permitted by the
orders, both sides responded. Plaintiffs again urged remand
for lack of subject matter jurisdiction, while Dexcom both
defended its pre-service removals as avoiding the forum
defendant rule and challenged Plaintiffs’ remand motions as
untimely.
In March 2023, the district court granted Casola’s
remand motion. The district court soon thereafter granted
Bottiglier’s and Pfeifer’s motions for the same reasons stated
in Casola’s remand order. In its remand orders, the district
court held that the actions “must be remanded to state court
because as a citizen of California [and therefore a forum
defendant], Defendant cannot remove . . . on the grounds of
diversity jurisdiction.” The court recognized that, because
10 CASOLA V. DEXCOM, INC.

the “forum defendant rule does not deprive [a] federal court
of jurisdiction,” a plaintiff waives its forum-defendant
objection if not raised within 30 days of the notice of
removal. See Lively, 456 F.3d at 942. However, the court
rejected Dexcom’s argument that Plaintiffs had waived their
forum-defendant objections by filing their remand motions
31 days after the initial notices of removal because the court
deemed those notices of removal “defective.”
The district court reasoned that “[a] proper removal
requires a complaint to have first been filed.” The district
court found that, despite Casola electronically submitting
her complaint a few days before, the Superior Court “did not
file [her] complaint until November 29, 2022, as evidenced
by the time stamp of the Clerk of the Superior Court.”
Because November 29, 2022, was the date the state court
action commenced and the date the complaint became the
“initial pleading” in the lawsuit, 28 U.S.C. § 1446(b)(1), the
court concluded that Dexcom’s earlier November 28, 2022,
notice of removal was a “defective removal notice” that did
not “start the clock on the 30-day window.” Accordingly,
the district court remanded each action because the cases
were removed by a forum defendant and Plaintiffs had not
waived this defect. 5
Dexcom timely appeals the remand orders, 6 which—
although not final judgments—“had the force of a final order

5
The district court transmitted the remand orders to the Superior Court
where the cases have proceeded during the pendency of these appeals,
but the transmittal does not deprive us of appellate jurisdiction. Acad. of
Country Music v. Cont’l Cas. Co., 991 F.3d 1059, 1070 (9th Cir. 2021).
6
Dexcom is not presently appealing the portion of the district court’s
remand orders granting Plaintiffs’ requests for attorneys’ fees and costs
11 CASOLA V. DEXCOM, INC.

given that [they] ‘put the litigants effectively out of [federal]
court.’” Lively, 456 F.3d at 938 n.7 (second alteration in
original) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 713 (1996)).
DISCUSSION
Appellate Jurisdiction
As a general matter, we have jurisdiction to hear these
appeals under 28 U.S.C. § 1291. But our jurisdiction to
review orders remanding actions to state court is limited by
§ 1447(d). Section 1447(d) provides that, except in certain
types of cases not presented here, “[a]n order remanding a
case to the State court from which it was removed is not
reviewable on appeal . . . .” Id. Despite the absolute tenor
of this prohibition, it has been interpreted “not [to] preclude
review if the district court lacked authority to remand under
§ 1447(c) in the first instance.” Smith v. Mylan Inc., 761
F.3d 1042, 1044 (9th Cir. 2014). Section 1447(c) reads, in
relevant part:

A motion to remand the case on the basis of
any defect other than lack of subject matter
jurisdiction must be made within 30 days
after the filing of the notice of removal under
section 1446(a). If at any time before final
judgment it appears that the district court
lacks subject matter jurisdiction, the case
shall be remanded.

Thus, the two authorized grounds for remanding under
§ 1447(c) are: (1) lack of subject matter jurisdiction, or

under § 1447(c), and we express no opinion as to the propriety of those
rulings.
12 CASOLA V. DEXCOM, INC.

(2) “nonjurisdictional defects” that are challenged within 30
days of removal. Acad. of Country Music, 991 F.3d at 1067;
see Lively, 456 F.3d at 940, 942 (discussing waiver).
Accordingly, in these appeals, our jurisdiction is limited
to determining “whether the district court exceeded the
scope of its § 1447(c) authority by issuing the remand
order.” Lively, 456 F.3d at 938. “[I]f the district court lacked
authority to remand under § 1447(c), appellate review is not
precluded.” Corona-Contreras v. Gruel, 857 F.3d 1025,
1028 (9th Cir. 2017). “Conversely, if the district court did
have authority to remand . . . under § 1447(c), then
§ 1447(d) applies and we do not have jurisdiction to review
the remand order.” Id.
In some cases, “to determine the district court’s authority
to issue [a] remand order, we must address the underlying
merits of the district court’s ruling.” Lively, 456 F.3d at 938;
see Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead
Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). In Lively, for
example, to decide whether we had appellate jurisdiction, we
had to resolve whether the district court properly remanded
sua sponte based on a violation of the forum defendant rule
never raised by the plaintiff in the eight months since the
case’s removal. 456 F.3d at 935, 937–42. We held that
§ 1447(d) permitted appellate review because the district
court exceeded its § 1447(c) authority in ordering remand
based on a waivable non-jurisdictional defect—the forum
defendant rule—which the plaintiff had not invoked within
30 days of removal. Id. at 942. However, even when review
is permitted under § 1447(d), “the question . . . is not
whether the district court’s remand order was correct,” but
whether it was authorized under § 1447(c). Id. at 938
(emphasis added).
13 CASOLA V. DEXCOM, INC.

As in Lively, determining jurisdiction over the present
appeals requires addressing the merits of the district court’s
remand orders—though only to the extent the merits bear on
the district court’s power to issue those orders.
Standard of Review
Where appellate jurisdiction is not barred by § 1447(d),
we review de novo a district court’s decision to remand a
removed case. Lively, 456 F.3d at 938. We likewise review
de novo a district court’s interpretation and construction of
federal statutes. Id. Removal statutes are “strictly construed,
and any doubt about the right of removal requires resolution
in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc.,
553 F.3d 1241, 1244 (9th Cir. 2009). This rule of narrow
construction both recognizes the limited jurisdiction of
federal courts and “protect[s] the jurisdiction of state
courts.” Harris v. Bankers Life & Cas. Co., 425 F.3d 689,
698 (9th Cir. 2005). “The presumption against removal
means that ‘the defendant always has the burden of
establishing that removal is proper.’” Moore-Thomas, 553
F.3d at 1244.
Analysis
Because the parties disagree on the reason the district
court gave for remanding, we begin by clarifying the nature
of the remand orders. Plaintiffs frame these appeals as
presenting a single dispositive question: whether the district
court acted within its § 1447(c) authority by remanding for
lack of subject matter jurisdiction, a defect which could be
addressed at any time before final judgment. We reject this
framing. While Plaintiffs indeed sought remand based on
lack of subject matter jurisdiction, the district court did not
order remand on that basis—even though it granted
Plaintiffs’ respective motions.
14 CASOLA V. DEXCOM, INC.

The district court agreed with Plaintiffs that Dexcom’s
(initial) notices of removal were “defective,” given their
filing in the district court before any of the complaints had
been officially filed in the Superior Court. However, from
that common starting point, the district court did not go on
to conclude that subject matter jurisdiction was lacking. The
district court began by acknowledging that the “forum
defendant rule does not deprive [a] federal court of
jurisdiction.” (Emphasis added.) It then found that the
notices of removal were “defective and therefore . . . d[id]
not render Plaintiff[s’] motion[s] to remand untimely.”
(Emphasis added.) Therefore, in the court’s view, Dexcom
had violated the forum defendant rule and Plaintiffs had
timely moved to remand because Dexcom’s “defective
removal notice[s] [could] not start the clock on the 30-day
window.” There would have been no need for the court to
go through the 30-day-remand-clock analysis it conducted if
it were remanding for lack of subject matter jurisdiction. See
28 U.S.C. § 1447(c) (requiring remand “at any time before
final judgment” if the district court lacks subject matter
jurisdiction).
Because the district court’s reason for remanding was not
lack of subject matter jurisdiction, the central question
before us is whether the district court had the power under
§ 1447(c) to remand these cases based on an undisputedly
non-jurisdictional defect (a perceived forum-defendant-rule
violation) asserted more than 30 days after the notices of
removal. Imbedded within this question are three subsidiary
issues. Only the first two are reviewable under § 1447(d).
First, were Dexcom’s notices of removal premature?
Yes. We conclude that the notices of removal were
premature because they were filed in the district court before
the respective complaints had been officially filed in the
15 CASOLA V. DEXCOM, INC.

Superior Court and therefore before the respective actions
had commenced.
Second, did the premature notices of removal
nevertheless start § 1447(c)’s 30-day remand clock, thereby
foreclosing remand premised on a forum-defendant-rule
violation asserted 31 days later? No. We conclude that the
prematurity defect rendered the notices of removal without
legal effect.
Dexcom originally invited us to answer a third question
as well: did these removals in fact violate the forum
defendant rule, as the district court found? Answering this
question would decide whether § 1441(b)(2) permits “snap
removal.” But as Dexcom’s counsel candidly conceded at
oral argument, § 1447(d) deprives us of jurisdiction to
decide the snap removal question, as we explain in the final
section of this opinion.
I. The Question of Prematurity
The prematurity question requires us to determine what
constitutes “filing” a complaint in California for purposes of
removability. While this might sound like a simple task
given that litigants have been filing complaints in the state
for over a century, it turns out to be a matter of first
impression that requires close parsing of state law. After
thorough study of California’s statutes, rules of court, and
case law, we hold that, for purposes of removability, a
complaint is “filed” in California state court when it is
processed and endorsed or otherwise acknowledged as
officially filed by the clerk of the court. 7

7
We emphasize that this rule applies only when determining whether a
civil action is in fact pending in state court—a prerequisite for removal—
16 CASOLA V. DEXCOM, INC.

To begin, the general removal statute permits “any civil
action” brought in state court, which could have been
brought in federal court, to be removed to the federal court
of the district “embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). Dexcom does not dispute
the premise that, at least in California, a complaint must be
filed in state court before it becomes a “pending” “civil
action” that can be removed to federal court. 8 See id.; Bush
v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir. 2005)
(observing in the Class Action Fairness Act context that “[i]t
is axiomatic that an individual or entity may not remove a
dispute before it has commenced in state court”). State law
determines when a state court dispute becomes a cognizable
legal action eligible for removal. Cheaptickets, Inc., 425
F.3d at 686. “In most states this occurs either when the suit
is filed or when the complaint or summons is served.” Id.
In California (where Plaintiffs brought their suits), “[a] civil
action is commenced by filing a complaint with the court.”
Cal. Civ. Proc. Code § 411.10. Thus, we must decide what
constitutes “filing a complaint” in a California trial court, id.,
giving rise to a removable “civil action” within the meaning
of § 1441(a).
a.
Because Plaintiffs submitted their complaints to the
Superior Court through an electronic filing service

not when determining whether an action was timely commenced, as in
cases involving statute of limitations issues.
8
In certain states like Washington, a civil action can also be commenced
by service of a summons and complaint, not purely by filing the
complaint. See Wash. Rev. Code § 4.28.020; Seattle Seahawks, Inc. v.
King Cnty., 128 Wash.2d 915, 917 (1996).
17 CASOLA V. DEXCOM, INC.

provider, 9 Dexcom directs the court to section 1010.6 of the
California Code of Civil Procedure, which governs
electronic filing and electronic service. Specifically,
Dexcom argues that section 1010.6, subdivision (e)(3)
dictates when an electronically submitted complaint is filed.
We disagree.
Subdivision (e) of section 1010.6 authorizes California
trial courts to adopt local rules permitting the “electronic
filing of documents,” subject to certain mandatory
conditions. One of these conditions is that:

Any document received electronically by the
court between 12:00 a.m. and 11:59:59 p.m.
on a court day shall be deemed filed on that
court day. Any document that is received
electronically on a noncourt day shall be
deemed filed on the next court day.

Cal. Civ. Proc. Code § 1010.6(e)(3) (emphasis added).
Dexcom argues that section 1010.6(e)(3) means that
Plaintiffs’ complaints—each submitted on a weekday—
were filed “[w]hen they were transmitted for filing, not when
the clerk eventually docketed them.” However, Dexcom
ignores surrounding provisions of section 1010.6 and
various California Rules of Court that clarify how
section 1010.6 applies.

9
“An ‘electronic filing service provider’ is a person or entity that
receives an electronic filing from a party or other person for
retransmission to the court or for electronic service on other parties or
other persons, or both.” Cal. R. Ct. 2.250(b)(8).
18 CASOLA V. DEXCOM, INC.

Beginning with the statute’s definitions subdivision,
section 1010.6(a)(1)(D) specifies that:

“Electronic filing” means the electronic
transmission to a court of a document
presented for filing in electronic form. For
purposes of this section, this definition of
electronic filing concerns the activity of
filing and does not include the processing
and review of the document and its entry into
the court’s records, which are necessary for a
document to be officially filed.

Id. (emphases added). Subdivision (a)(1)(D) undermines
much of Dexcom’s argument that the transmission of a
complaint equates to the actual filing of a complaint. This
subdivision expressly distinguishes between the
presentation of a document for filing and the official filing
of a document after processing and review. Id.
This distinction makes sense because clerks of court
must review submissions for compliance with court rules.
For instance, in California trial courts, the clerk of court
“must not accept for filing or file any papers that do not
comply with the rules” governing form and format. Cal. R.
Ct. 2.118(a). Many filings, and notably most complaints,
also require payment of filing fees. See Cal. Gov’t Code
§ 70611 (setting uniform fee for filing “the first paper” in
unlimited civil actions).
Subdivision (e)(4) of section 1010.6 spells out in some
detail the various responsive actions the clerk of court—or
in some cases an electronic filing service provider—must
take upon receipt of a “document submitted for electronic
filing.” Cal. Civ. Proc. Code § 1010.6(e)(4)(A); see id.
19 CASOLA V. DEXCOM, INC.

§ 1010.6(e)(4)(A)–(E). Whichever entity receives the
document first must “promptly” send a confirmation of
receipt to the sender, indicating the date and time of receipt.
Id. § 1010.6(e)(4)(A). If the document received by the court
“complies with filing requirements and all required filing
fees have been paid, the court shall promptly send
confirmation that the document has been filed to the party or
person who submitted the document.” Id. § 1010.6(e)(4)(B).
“If the clerk of the court does not file a document received
by the court . . . because the document does not comply with
applicable filing requirements or the required filing fee has
not been paid, the court shall promptly send notice of the
rejection of the document for filing” to the sender. Id.
§ 1010.6(e)(4)(C) (emphasis added). In the event of a
rejection of a complaint (or cross complaint) under
subparagraph (C), “any statute of limitations applicable to
the causes of action alleged in the complaint . . . shall be
tolled” from the date the complaint was received through the
date the notice of rejection was sent, plus one additional day.
Id. § 1010.6(e)(4)(E).
These provisions, again, reflect that just because a
document is “submitted for electronic filing,” id.
§ 1010.6(e)(4)(A), does not mean that it is, or will be, filed.
Subdivision (e)(4) further reflects a legislative
understanding that some time will pass between a
document’s submission and its review for filing, and
therefore creates a system for tolling the statute of
limitations for rejected complaints. Id. § 1010.6(e)(4)(E).
There would be no need to “toll” the statute of limitations if
a complaint were in fact filed immediately upon its
submission to the court.
Additionally, section 1010.6(e)(3)’s use of the word
“deemed” reflects the same usage appearing in the California
20 CASOLA V. DEXCOM, INC.

case law regarding the timeliness of filings for purposes of
statutes of limitation and other filing deadlines. See
Pangilinan v. Palisoc, 174 Cal. Rptr. 3d 114, 116–17 (Ct.
App. 2014) (finding notice of appeal was timely because it
must be “deemed filed” on the date appellant presented it to
the clerk’s office for filing (emphasis added)); People v.
Stiehl, 131 Cal. Rptr. 3d 1, 3 (Ct. App. 2011) (finding the
district attorney complied with a statutory filing deadline
because the criminal information “should have been deemed
‘filed’ upon its presentation to the clerk” (emphasis added));
Carlson v. Cal. Dep’t of Fish & Game, 80 Cal. Rptr. 2d 601,
602, 606 (Ct. App. 1998) (holding that complaint was
“effectively filed” before the statute of limitations ran
because “a paper is deemed filed when it is presented to the
clerk for filing” in a form that complies with state law
(emphasis added)); Rojas v. Cutsforth, 79 Cal. Rptr. 2d 292,
292, 294 (Ct. App. 1998) (reversing summary judgment on
statute-of-limitations grounds where complaint was rejected
for an insubstantial defect, and remanding with “instructions
to deem the complaint filed” on the date it was presented to
the clerk (emphasis added)); see also Schneider v. Hall, No.
A141948, 2017 WL 772437, at *5 (Cal. Ct. App. Feb. 28,
2017) (unpublished) (“The remedy when a clerk improperly
refuses to file a paper . . . is for the court to deem the paper
filed as of the date it was presented to the clerk for filing.”
(emphasis added)). This reinforces the conclusion that
section 1010.6(e)(3) is concerned with establishing a
document’s timeliness, not its official entry as a court record.
When read in its entirety, therefore, section 1010.6 does not
support the weight Dexcom places on subdivision (e)(3).
The California Rules of Court for the state’s trial courts,
promulgated by the Judicial Council of California, provide
21 CASOLA V. DEXCOM, INC.

further guidance on section 1010.6’s application. 10 Rule
2.250 reinforces the statutory distinction between
presentation and acceptance of documents for filing, using
language like that found in section 1010.6(a)(1)(D). See Cal.
R. Ct. 2.250(b)(7) (defining “Electronic filing”). Rule 2.259
likewise mirrors section 1010.6(e)(4)’s required
notifications regarding the filing or rejection of documents
received electronically, adding more detailed requirements
in some areas. Cal. R. Ct. 2.259(a)–(b). For example, Rule
2.259(d) specifies the required format of the endorsement to
be placed upon electronically filed documents. 11 Cal. R. Ct.
2.259(d)(1).

10
We have explained the authority of the Judicial Council and the force
of California Rules of Court as follows:

Article VI, Section 6 of the California Constitution
establishes the Judicial Council of California and
charges it with “adopt[ing] rules for court
administration, practice and procedure,” specifying
that “[t]he rules adopted shall not be inconsistent with
statute.” CAL. CONST. art. VI, § 6(d). In turn, the
Judicial Council adopted the California Rules of
Court, which “‘have the force of statute to the extent
that they are not inconsistent with legislative
enactments and constitutional provisions.’”
Silverbrand v. Cnty. of Los Angeles, 46 Cal. 4th 106,
92 Cal. Rptr. 3d 595, 205 P.3d 1047, 1059 (2009)
(quoting Sara M. v.
Superior Court, 36 Cal. 4th 998, 32 Cal. Rptr. 3d 89,
116 P.3d 550, 556 (2005)) (internal quotation marks
omitted).

Schmidt v. Contra Costa County, 693 F.3d 1122, 1133 (9th Cir. 2012).
11
“The court’s endorsement of a document electronically filed must
contain the following: ‘Electronically filed by Superior Court of
22 CASOLA V. DEXCOM, INC.

Rule 2.253 provides the most concrete basis for rejecting
Dexcom’s interpretation of section 1010.6(e)(3). As
relevant here, Rule 2.253 authorizes California trial courts,
through local rules, to institute not only the permissive
electronic filing authorized by section 1010.6 but also
mandatory electronic filing in certain civil actions. Cal. R.
Ct. 2.253(a), (b). Courts that institute mandatory electronic
filing, such as the Superior Court that received Plaintiffs’
complaints, must comply with the same mandatory
conditions set forth in section 1010.6 as well as additional
conditions specified in the Rules of Court. Cal. R. Ct.
2.253(b). Critically for present purposes, Rule 2.253
specifies that in local rules instituting mandatory electronic
filing,

[t]he effective date of filing any document
received electronically is prescribed by Code
of Civil Procedure section 1010.6. This
provision concerns only the effective date of
filing. Any document that is received
electronically must be processed and satisfy
all other legal filing requirements to be filed
as an official court record.

Cal. R. Ct. 2.253(b)(6) (emphases added). Rule
2.253(b)(6)’s reference to section 1010.6 must refer to
subdivision (e)(3), as that is the statute’s only provision
addressing filing dates.
One of the few cases to interpret Rule 2.253(b)(6) is
Westlands Water District v. County of San Joaquin,

California, County of __________, on __________ (date),’ followed by
the name of the court clerk.” Cal. R. Ct. 2.259(d)(1).
23 CASOLA V. DEXCOM, INC.

No. F081181, 2021 WL 873090 (Cal. Ct. App. Mar. 9, 2021)
(unpublished). 12 There, in determining the timeliness of an
answer submitted electronically in Fresno County Superior
Court (which also mandates electronic filing for certain civil
cases), id. at *1, the Fifth District Court of Appeal stated that
the above italicized language “warns that mere receipt of a
document does not mean it will be filed,” id. at *5. The
Court of Appeal explained: “Defective papers may be
rejected by the clerk of court. However, if the defect is cured
and the document is filed, the filing date relates back to the
date of receipt, which is the ‘effective date’ of the filing.”
Id. (citing Cal. R. Ct. 2.253(b)(6) and Fresno County
Superior Court local rules).
This interpretation of Rule 2.253(b)(6)—which in turn
establishes how section 1010.6(e)(3) applies in mandatory
electronic filing cases such as those now before us—clarifies
that the date the clerk receives a document sets the effective
date of a document’s filing but not necessarily the actual
date of that document’s filing. Especially for case-initiating
documents like a complaint, the difference between the two
can be significant. As demonstrated here, fourteen days
(eight business days, accounting for the Thanksgiving
holiday) passed between the Clerk of the Superior Court
receiving Pfeifer’s complaint on November 23, 2022, and
endorsing it as filed on December 7, 2022. 13 Under Rule
2.253(b)(6) and section 1010.6(e)(3), her complaint

12
We may consider unpublished California Court of Appeal decisions in
determining California law, even though such opinions are not precedent
within the state system. See Beeman v. Anthem Prescription Mgmt.,
LLC, 689 F.3d 1002, 1008 n.2 (9th Cir. 2012).
13
Meanwhile, Casola’s and Bottiglier’s complaints were processed
within three business days.
24 CASOLA V. DEXCOM, INC.

undoubtedly enjoys an “effective date” of November 23,
2022, and would have to be “deemed” filed on that date if
challenged as untimely. However, both quoted terms
inherently imply that this date is not necessarily the actual
filing date.
Thus, contrary to Dexcom’s contentions,
section 1010.6(e)(3) does not dictate when an electronically
submitted complaint is actually filed.
b.
We are aware of no California case discussing at what
moment a complaint is actually filed, as opposed to when it
is deemed filed for timeliness purposes. There is, however,
straightforward California case law regarding what
constitutes the act of filing documents other than
complaints. In Tregambo v. Comanche Mill & Mining
Company, the California Supreme Court overturned a
default judgment entered against a defendant whose
demurrers were initially received by the clerk without
imposing any filing fee but were then rejected for failure to
pay the purported filing fee. 57 Cal. 501, 505–06 (1881) (in
bank). Finding that the clerk of court waived his right to
require prepayment, the high court stated:

When, therefore, the demurrers were brought
and deposited with the clerk for filing, they
were, in contemplation of law as to the
defendant, on file in the case. A paper in a
case is said to be filed when it is delivered to
the clerk and received by him, to be kept with
the papers in the cause. Filing a paper
consists in presenting it at the proper office,
and leaving it there, deposited with the papers
25 CASOLA V. DEXCOM, INC.

in such office. Indorsing it with the time of
filing is not a necessary part of filing.

Id. at 506 (internal citations omitted).
Tregambo’s definition of filing has become “a long-
standing principle of California law.” Stiehl, 131 Cal. Rptr.
3d at 3. It is often cited in cases addressing timeliness
challenges, see, e.g., id.; In re Gray, 102 Cal. Rptr. 3d 551,
558 (Ct. App. 2009), but Tregambo itself was not a
timeliness case. It was simply deciding whether the
defendant’s demurrers had been filed (and thus whether
default judgment was appropriate), not whether they were
timely filed. Therefore, Tregambo can be read to squarely
answer the question of what constitutes the actual filing (not
the deemed filing) of a document in a California trial court:
“Filing a paper consists in presenting it at the proper office,
and leaving it there, deposited with the papers in such
office.” 57 Cal. at 506.
This holding at first appears to offer strong support for
Dexcom’s argument that Plaintiffs “filed” their complaints
when they (electronically) deposited them with the Superior
Court via an electronic filing service provider. If
Tregambo’s principle applied, the Superior Court’s delay in
endorsing and docketing the complaints would not affect
their filed status, since endorsement with the time of filing
“is not a necessary part of filing.” Id.
However, for several reasons, Tregambo does not apply.
First, Tregambo long predates the present detailed electronic
filing provisions contained in section 1010.6 and the
California Rules of Court. As noted, those provisions
instruct against equating mere presentation of a complaint
for filing with its actual filing as a court record. Further,
26 CASOLA V. DEXCOM, INC.

Tregambo was not addressing the filing of a case-initiating
pleading, like a complaint. The filing of a complaint is
different, given the unique processing and docketing
required at the commencement of an action.
For one thing, most complaints—including those in the
present cases—require payment of a filing fee. See Cal.
Gov’t Code § 70611; Duran v. St. Luke’s Hosp., 8 Cal. Rptr.
3d 1, 2 (Ct. App. 2003) (“An unbroken line of decisions by
our Supreme Court holds that it is mandatory for court clerks
to demand and receive the fee required by statute before
documents or pleadings are filed.”). In Duran, 8 Cal. Rptr.
3d 1, for example, the First District Court of Appeal affirmed
the dismissal of a complaint as time-barred where the
complaint was tendered with a check that was $3 short of the
required filing fee. 14 The plaintiffs argued that the Court of
Appeal should apply a version of Tregambo’s delivery-as-
filing rule (stated in a more recent California Supreme Court
case)—that “‘filing’ for purposes of compliance with the
time limits [for seeking review of a decision by the state’s
Agricultural Labor Relations Board] means what it does in
all other contexts: actual delivery of the petition to the clerk
at his place of business during office hours.” Id. at 4
(quoting United Farm Workers of Am. v. Agric. Lab. Rels.
Bd., 37 Cal. 3d 912, 918 (1985)). The Duran court found
United Farm Workers of America “clearly distinguishable”
because, first, that case was not addressing a civil complaint

14
Shortly after the Duran decision, the California legislature enacted a
statute to avoid this unjust result in the future. See Cal. Civ. Proc. Code
§ 411.21(a) (“If a complaint or other first paper is accompanied by
payment by check in an amount less than the required fee, the clerk shall
accept the paper for filing, but shall not issue a summons until the court
receives full payment of the required fee.”) (enacted by Cal. Stats. 2005,
c. 75 (A.B. 145), § 31).
27 CASOLA V. DEXCOM, INC.

but rather a filing that did not require a filing fee, and second,
“the issue was not the commencement, but the continuation
of litigation already under way.” Id. at 3–4. The court relied
instead on a different California Supreme Court case, Davis
v. Hurgren, which held that “the mere fact that the clerk
received [a notice of intent to seek a new trial] . . . did not
constitute a filing” because the notice was not accompanied
by the mandatory filing fee. Id. at 4 (discussing and quoting
Davis v. Hurgren, 125 Cal. 48, 51 (1899)). Duran and Davis
therefore demonstrate that California courts do not follow
Tregambo’s delivery-as-filing rule for complaints and other
case-initiating papers requiring a filing fee.
Second, Tregambo itself can be read to require more than
mere delivery to accomplish filing. The California Supreme
Court wrote: “A paper in a case is said to be filed when it is
delivered to the clerk and received by him, to be kept with
the papers in the cause.” 57 Cal. at 506 (emphasis added).
It also acknowledged that, although the clerk in that case
demanded no fees, “he had a legal right to refuse to file [the
demurrers], unless the fees for that service were paid to
him.” Id. These statements imply that filing is a
combination of delivery of the document and its acceptance
by the clerk.
Finally, even assuming Tregambo and United Farm
Workers of America set a pure delivery-as-filing rule, that
rule arose from a need to protect filers from legal injury
caused by a clerk’s error or omission. See Tregambo, 57 Cal.
at 506 (stating in closing that clerk’s “omission of duty [by
not endorsing the demurrers as filed] could not prejudice the
defendant in any of its legal rights”). The best way to do so
was to focus exclusively on the actions of the filer. See
United Farm Workers of Am., 37 Cal. 3d at 918 (“[I]t is the
filer’s actions that are scrutinized.”). However, the focus of
28 CASOLA V. DEXCOM, INC.

the inquiry must broaden beyond merely the filer’s actions
when analyzing whether a complaint is filed for purposes
other than preventing an administrative injustice. For
instance, when considering the operative status of a
complaint, the plaintiff’s delivery of the complaint to the
clerk is of course essential; but equally important in
considering the document’s operative status is what the clerk
does with it next. A civil action does not spontaneously arise
just because a complaint is delivered to a clerk. The clerk’s
office must, among other things, process the complaint and
create a new civil case file and docket in which the complaint
can be entered as a court record. California Code of Civil
Procedure section 1010.6(a)(1)(D) tells us this “processing
and review of the document and its entry into the court’s
records . . . are necessary for a document to be officially
filed.” California Rule of Court 2.253(b)(6) says essentially
the same: “Any document that is received electronically
must be processed and satisfy all other legal filing
requirements to be filed as an official court record.”
For all these reasons, Tregambo’s delivery-as-filing rule
does not govern the present cases.
c.
We also reject Dexcom’s policy argument that we should
avoid adopting different rules for removal purposes, on the
one hand, and for statute-of-limitations and similar
timeliness purposes, on the other. Dexcom warns that
rejection of its delivery-based rule will mean that the same
complaint could be treated as filed for purposes of the statute
of limitations but unfiled for purposes of removal. While
there can be virtue in uniformity, this argument fails given
the vastly different interests at stake in the two scenarios.
29 CASOLA V. DEXCOM, INC.

In advocating for a uniform delivery-based filing rule,
Dexcom cites only cases regarding the timeliness of
complaints and other critical filings. See United States v.
Dae Rim Fishery Co., 794 F.2d 1392 (9th Cir. 1986), Loya
v. Desert Sands Unified Sch. Dist., 721 F.2d 279 (9th Cir.
1983); Pangilinan, 174 Cal. Rptr. 3d 114; Stiehl, 131 Cal.
Rptr. 3d 1; Carlson, 80 Cal. Rptr. 2d 601. These cases,
however, are explicitly limited to contexts in which the
expiration of the statute of limitations or another critical
filing deadline was at stake. As the district court put it,
timeliness cases aim “to prevent the manifest injustice of a
clerk’s refusal to file a complaint depriving a plaintiff of the
right to bring suit.”
The stakes here are far lower. It is defendant Dexcom, a
litigant with no filing deadline riding on the question, 15 who

15
Of course, removing defendants do have a 30-day clock of their own
to contend with. In states like California where initial pleadings
generally must be served on defendants (not simply filed), the notice of
removal “shall be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading . . . .” 28
U.S.C. § 1446(b)(1). However, that 30-day removal clock only starts
ticking once the defendant has been served. See Murphy Bros. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 347–48 (1999) (holding that,
where defendant was faxed a courtesy copy of a filed complaint,
defendant’s time to remove is not triggered “by mere receipt of the
complaint unattended by any formal service”). To be sure, a defendant
might choose to remove before service. See Novak v. Bank of N.Y.
Mellon Tr. Co., 783 F.3d 910, 911 (1st Cir. 2015) (per curiam) (holding
that defendants are not precluded from removing pre-service). But there
is no statutory removal deadline that compels them to do so.
At any rate, based on our above analysis of California law, Dexcom
was attempting to remove after receiving a not-yet-filed complaint.
Section 1446(b)(1) ties the 30-day removal deadline to receipt of “a copy
of the initial pleading.” The unfiled complaints Dexcom accessed
through CNS did not become “initial pleading[s]” until they were
30 CASOLA V. DEXCOM, INC.

asks the court to deem these cases into existence before their
docketing in state court. And for what purpose but to attempt
to deprive Plaintiffs of their choice of forum? Whatever the
benefits might be to litigating in federal court, there is no
manifest injustice to a California-based company having to
defend itself in a California court. Further militating against
deeming a civil action to be commenced at the earliest
possible moment is the overall comity interest in “ensur[ing]
respect for the jurisdiction of state courts.” Harris, 425 F.3d
at 698 (citing this as an interest served by not permitting
premature removals of a different sort). Often-overburdened
state trial courts deserve the chance to at least register the
pleadings that come to them before having cases removed by
nimble parties.
In addition, given that snap removal remains an available
option for defendants at least in some district courts in
California, adopting Dexcom’s delivery-as-filing rule would
effectively give in-forum defendants with subscriptions to e-
filing monitoring services a safe harbor in which to
accomplish snap removals unhindered by speedy service of
process. As both sides acknowledged at oral argument,
Plaintiffs could not serve Dexcom until they received a copy
of their respective summonses from the Superior Court.
Service of summons is what gives a superior court—and
courts, generally—jurisdiction over a defendant (unless the
defendant enters a general appearance). Cal. Civ. Proc.
Code § 410.50(a); see Murphy Bros., 526 U.S. at 350
(“Service of summons is the procedure by which a court
asserts jurisdiction over the person of the party served.”

officially filed by the Superior Court. As discussed in the next section,
before a complaint has been filed, there is not anything to be removed—
much less anything to start the removal clock.
31 CASOLA V. DEXCOM, INC.

(alterations and citation omitted)). And, under California
law, service on a corporation is accomplished “by delivering
a copy of the summons and the complaint” through
designated methods. Cal. Civ. Proc. Code § 416.10
(emphasis added). However, “[n]o summons may be
issued . . . until the complaint . . . has been filed and the
filing fees paid.” Judicial Council Comment to Cal. Civ.
Proc. Code § 412.10 (emphasis added).
Here, Casola could not have served Dexcom until late on
November 29, 2022, at the very earliest, since the summons
was stamped (and presumably issued) at 3:31 PM that day.
This was one day after Dexcom filed its notice of removal
and a full six days after Dexcom caught wind of the
complaint’s e-submission through its counsel’s CNS
subscription. For those six days awaiting her copy of the
summons, Casola had no way to prevent Dexcom from
effecting a snap removal and claiming it had not yet been
“properly joined and served,” 28 U.S.C. § 1441(b)(2).
Accordingly, we hold that, for purposes of removability,
an electronically submitted complaint is not “filed” in
California state court until it is processed and endorsed or
otherwise acknowledged as officially filed by the clerk of the
court. See Cal. Gov’t Code § 69846.5. A case will normally
become removable as of the filing date shown on the
endorsement stamped on the complaint when it is entered
into the court’s records; nonetheless, a removing party might
submit other evidence to establish an earlier filing date
where the file-stamped date is missing, illegible, or
demonstrably incorrect.
Applying that rule here confirms the district court’s view
that Dexcom’s initial notices of removal were premature in
each case. Once processed by the Superior Court, Casola’s
32 CASOLA V. DEXCOM, INC.

and Bottiglier’s complaints were stamped as
“ELECTRONICALLY FILED” on November 29, 2022, and
Pfeifer’s on December 7, 2022. There is no evidence or
argument in support of an earlier filing date. Under the rule
we adopt today, those are the dates each action was filed and
became a pending civil action removable under 28 U.S.C.
§ 1441(a). Dexcom filed its notices of removal in all three
cases on November 28, 2022, before the cases officially
existed. Therefore, the notices of removal were premature. 16
II. The Question of Effect
We turn next to the question of whether the notices of
removal, despite their prematurity, nevertheless started the
30-day clock for non-jurisdictional objections to removal.
See 28 U.S.C. § 1447(c). Dexcom challenges the district
court’s reasoning that a “defective” notice of removal
“cannot start the clock on the 30-day window for a remand
motion.” Were the present notices of removal defective for
merely procedural or technical reasons, we might agree that
their defectiveness would not block the 30-day window from
opening. Holding otherwise would lead to the litigation of
non-jurisdictional removal defects long past the time
Congress intended. See N. Cal. Dist. Council of Laborers v.
Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th
Cir. 1995) (“The purpose of the 30-day time limit is to
resolve the choice of forum at the early stages of litigation,

16
The only other federal court to have analyzed the above California
authorities in determining the removability of a case removed before it
was officially filed came to the same conclusion that we reach. See
Martinez v. Airbnb, Inc., --- F. Supp. 3d ----, No. 23-CV-02941-DMR,
2023 WL 5942273 (N.D. Cal. Sept. 11, 2023) (remanding after finding
notice of removal was prematurely filed before the San Francisco County
Superior Court had reviewed and officially accepted the electronically
submitted complaint).
33 CASOLA V. DEXCOM, INC.

and to prevent the shuffling of cases between state and
federal courts after the first thirty days.” (internal quotation
marks, alteration, and citation omitted)).
However, the notices of removal here had a foundational
defect—the absence of an existing civil action in state
court—that rendered them not just defective but legally null
and void. There were no pending civil actions that could be
removed when Dexcom filed its initial notices of removal
because the complaints had not been officially filed. While
not a traditional “subject matter jurisdiction” defect, the lack
of a pending state court case still presents a jurisdictional
problem for removal. Dexcom provides no authority for a
contrary holding. See Moore-Thomas, 553 F.3d at 1244
(defendant’s burden to establish that removal is proper).
This logically leads to the conclusion that, as Plaintiffs
originally argued in their remand motions, the premature
November 28, 2022, notices of removal did not confer
jurisdiction on the district court to hear the cases because
there were no cases then pending. That jurisdictional defect,
however, was cured by Dexcom’s filing of supplemental
notices of removal in each case after the respective
complaints had been officially filed in the Superior Court
(and before the district court ruled on the remand motions).
Nevertheless, curing the jurisdictional defect did not
retroactively cure the prematurity of the original notices of
removal. Without any existing civil action to be removed
when Dexcom first came to federal court, its original notices
of removal were legally inoperative and did not start the 30-
day remand clock. Section 1447(c)’s 30-day clock only
started upon the filing of the supplemental notices of
removal.
34 CASOLA V. DEXCOM, INC.

Because Plaintiffs’ remand motions were filed within 30
days of the supplemental notices of removal, they timely
asserted the forum-defendant-rule violation raised in those
motions. Although Plaintiffs’ motions were not primarily
asserting a forum-defendant-rule violation, they explicitly
raised that defect. Thus, the remand orders were not sua
sponte remands forbidden under Lively, 456 F.3d at 936.
Therefore, the district court acted within its § 1447(c)
authority to remand each case for what it perceived to be a
violation of the forum defendant rule.
III. The Snap Removal Question
We do not today decide the final issue imbedded in the
remand orders: whether Dexcom in fact violated the forum
defendant rule in these cases. The district court held these
removals did violate the rule, but it did so without
mentioning Dexcom’s snap removal argument that pre-
service removals by a forum defendant are permissible. We
do not address that renewed argument here for two reasons.
First, to resolve these appeals arising from pre-filing “super
snap removals,” it is not necessary to decide whether pre-
service snap removals are permissible under 28 U.S.C.
§ 1441(b)(2). Second, and more importantly, § 1447(d) bars
us from addressing the correctness of the district court’s
implied finding that snap removals are not allowed. 17

17
It is now common practice for in-forum defendants in potential
diversity actions to race to file a notice of removal before being served
with process and then claim shelter under the “properly joined and
served” language in § 1441(b)(2). Three sister circuits have held that
§ 1441(b)(2), by its plain text, permits snap removals—notwithstanding
counterarguments that the basic premise of diversity jurisdiction is to
protect non-forum litigants from potential state court bias toward in-
forum litigants. See Tex. Brine Co. v. Am. Arb. Ass’n, 955 F.3d 482,
35 CASOLA V. DEXCOM, INC.

As mentioned at the outset, in reviewing a remand order,
our appellate jurisdiction is limited to determining “whether
the district court exceeded the scope of its § 1447(c)
authority.” Lively, 456 F.3d at 938. In this posture, we
“cannot examine whether a particular exercise of power was
proper.” Pittsburg-Des Moines Steel Co., 69 F.3d at 1038
(internal quotation marks and citation omitted). Section
1447(d) limits our jurisdiction to questions going to “the
district court’s power to order a remand, not to the merits of
the court’s finding of a defect in removal procedure.” Id.
The district court’s finding of a forum-defendant-rule
violation here constitutes a finding of a defect in removal
procedure. See Lively, 456 F.3d at 936 n.4 (noting that,
although the forum defendant rule does not fit neatly within
the traditional concept of a procedural defect, it is one).
Unlike the question of the legal effect of a premature notice
of removal—which determines whether the district court had
the power to remand even though 30 days had elapsed since
the notices of removal—the snap removal question goes to
the correctness of the remand orders. Thus, § 1447(d)
prohibits our review of the district court’s application of the

486–87 (5th Cir. 2020); Gibbons v. Bristol-Myers Squibb Co., 919 F.3d
699, 705–07 (2d Cir. 2019); Encompass Ins. Co. v. Stone Mansion Rest.
Inc., 902 F.3d 147, 152–54 (3d Cir. 2018). But see, e.g., U.S. Bank Nat’l
Ass’n, etc. v. Fid. Nat’l Title Grp., Inc., 604 F. Supp. 3d 1052, 1058–59
(D. Nev. 2022).
District courts in circuits like ours that have not decided the
permissibility of snap removal are divided on the matter. However, the
present appeals do not offer us the chance to conclude the debate on snap
removal in the Ninth Circuit because, unlike the above circuit court
cases, these appeals arise from orders granting—rather than denying—
remand. See 28 U.S.C. § 1447(d) (generally prohibiting appellate review
of “[a]n order remanding a case to the State court from which it was
removed”).
36 CASOLA V. DEXCOM, INC.

forum defendant rule. See Kircher v. Putnam Funds Tr., 547
U.S. 633, 642 (2006) (“Where the order is based on one of
the [grounds enumerated in 28 U.S.C. § 1447(c)], review is
unavailable no matter how plain the legal error in ordering
the remand.” (alteration in original) (quoting Briscoe v. Bell,
432 U.S. 404, 413–14 n.13 (1977))).
CONCLUSION
While the final chapter on snap removals in the Ninth
Circuit remains to be written, today we close the book on
California defendants’ attempts at ever-snappier snap
removals. Those being sued in state court must wait at least
until the case against them becomes a “pending” “civil
action,” 28 U.S.C. § 1441(a), before removing the matter to
federal court. In California, this means waiting until the
complaint has been officially filed in the superior court. A
notice of removal filed in a district court before the
complaint’s official filing in the state court is of no legal
effect, even if it is docketed by the district court clerk’s
office. Such a premature notice of removal neither vests the
district court with jurisdiction nor starts the 30-day clock for
non-jurisdictional remand motions. However, a subsequent
supplemental notice of removal will, as here, cure the
jurisdictional defect and start the 30-day clock.
Based on these holdings, the district court did not exceed
its § 1447(c) authority in remanding based on a timely raised
non-jurisdictional defect. We therefore lack jurisdiction to
review its remand orders, see 28 U.S.C. § 1447(d), and these
consolidated appeals are DISMISSED. Given the issues of
first impression here presented, each party shall bear its own
costs of appeal.